What is parental leave?
Parental leave is the right to take up to 18 weeks of unpaid leave to care for a child before the child’s 18th birthday. This is the minimum right permitted by law but can be enhanced. Parental leave is available to employees with 12 months’ service.
By default, leave must be taken in whole weeks and only up to 4 weeks a year may be taken per child. If the child is disabled the leave doesn't need to be taken in whole weeks.
Parents should give employers 21 days’ advance notice before the intended leave start date. Employees must confirm the start and end dates in their notice. Unless an employer requests it, this notice does not have to be in writing.
During parental leave, the Employment contract continues except for pay and benefits. Employees must not be dismissed or subjected to detriment for taking or requesting parental leave or this can lead to discrimination claims.
Employers may choose to enhance parental leave rights or can make certain changes to the default statutory scheme through a workplace or collective agreement (eg by paying during leave or extending the right to employees with less than 12 months' service).
A Parental leave policy that explains the process within your business can help ensure obligations are met and rights are upheld.
Who can take parental leave?
Only employees with parental responsibility can take parental leave (unless the employer permits individuals without parental responsibility to take such leave). This means they must:
be the child’s biological parent (whether or not living with the child)
be the child’s adoptive parent
otherwise have (or expect to have) legal parental responsibility for the child, including under a surrogacy arrangement (eg be the legal guardian)
Foster parents typically only qualify for parental leave if they have acquired parental responsibility for the child. Similarly, a child’s stepparent is generally not entitled to parental leave for the child unless they have formally acquired parental responsibility (eg adopted the child).
The employer can ask for reasonable evidence of parental responsibility (eg a birth certificate) provided that it is reasonable to do so. For example, employers can’t ask for proof each time an employee requests leave.
Tricky parental leave issues
If the parental leave would unduly disrupt business operations, the employer can postpone the requested leave for up to 6 months unless:
delaying the leave would mean the child is no longer under the age of 18
To postpone parental leave, the employer must consult with the employee and notify them of the postponement (including the new leave dates) within 7 days of their request.
If the postponement is 'unreasonable', the employee can bring an Employment Tribunal claim. The tribunal will balance the impact of allowing the leave on the employer against the effect of the refusal on the employee.
Other tricky issues can arise, especially where parental leave is extended or combined with other leave rights, including holiday entitlement. Rights under final salary pension arrangements continue to accrue while parental leave is taken.
Care must also be taken to adjust performance and bonus targets so employees aren't unfairly penalised for taking leave, although pro-rating is normally acceptable. Bonuses that do not depend on work performed (eg loyalty bonuses and some Christmas bonuses) should not be reduced.
It may not be practicable to have the employee return to the same job. In this case, they must be offered suitable, alternative employment.
If in doubt Ask a lawyer about these tricky areas.